CPLR 3211(a)(7)

Plaintiff underwent a surgical procedure during which there were implants of bone, bone paste and other tissue which had been distributed by defendants. Plaintiff alleged that, seven months later, he was advised that those materials were "potentially" contaminated with HIV, but he did not allege that he was infected. The Second Department dismissed the complaint, in its entirety, in Aberbach v. Biomedical Tissue Services, which was decided on February 26, 2008.

The court found no valid claim for battery because there was no allegation that defendants intentionally touched plaintiff's body, either personally or with an instrumentality. There was no cause of action sounding in negligent infliction of emotional distress because plaintiff did not allege that he was actually, or even probably, exposed to HIV. The alleged breach of express and implied warranties, along with the claim of strict products liability, could not stand because there was no allegation of a sale, which is required to support these causes of action. Finally, the complaint failed to allege a cognizable injury resulting from negligence.

New York practice point: In considering a motion to dismiss, pursuant to CPLR 3211(a)(7), the court must accept as true the facts as alleged in the complaint, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit any cognizable legal theory. The court may not consider whether plaintiff can ultimately establish the allegations.